For more than a decade, Cohen has been working to clean up the cruise ship industry, which routinely dumps wastewater pollution into national and international waterways. In June 2011, Earthjustice, on behalf of conservation groups like Cohen’s, successfully defended an Alaskan ballot initiative that called for cruise ships to stop discharging waste into Alaska’s pristine waters.

Jessica Knoblauch: So you’ve been involved with cleaning up wastewater pollution from cruise ships in Alaska for quite some time now. I’ve never actually taken a cruise, but I’d imagine that these ships, with the hundreds of people on board, they tend to create a lot of waste. How did first learn about this issue?

Gershon Cohen: Well, first of all, it’s actually thousands of people on board, not hundreds. I guess if it was hundreds it wouldn’t be such a big problem. But I learned about the issue because I was handed a New York Times article by a friend back in 1999 that was about the fact that Royal Caribbean had just been convicted on 21 felony counts for dumping all manners of wastes and having phony piping on the ships that allowed them to bypass treatment systems and having phony log books on board.

One of the places where they were busted for doing this dumping was right near my home in Alaska. And a friend of mine was reading the New York Times and saw the article and brought it to me and I immediately called EPA [U.S. Environmental Protection Agency] to find out if I could get a copy of one of their permits to see what they were supposed to be able to discharge. And a few hours later I got a call back from a very sheepish EPA person who said “Gee. They don’t have permits.”

I said, “What do you mean they don’t have permits? How could you be discharging millions of gallons of wastewater and not have a permit?”

And he says, “Well, it looks like they’re exempt."

I was like, “No kidding. I wonder how they worked that?”

And that’s where it all started for me. One thing led to another. I started looking into the fact that they didn’t have a permit to operate, that they were being exempted under a bogus regulation that was exempting incidental discharges from vessels. This was, of course, not an incidental discharge. It was the daily discharge of millions of gallons of wastewater. So that’s where it all started for me back in 1999.

Jessica: Wow. So what’s in this waste? And just how much is there? You mentioned millions of gallons per day?

Gershon: Say a typical ship, which is getting bigger all the time, but say a typical ship of a couple of thousand passengers will have close to a thousand crew, they will generate about thirty to forty thousand gallons a day of sewage. They will generate several hundred thousand gallons a day of graywater, which is the water from showers, sinks, laundry facilities, things like that. They will have waste streams from medical facilities. They have waste streams from their spas and their pools that are contaminated with various chemicals. They have waste streams from machine shops on board. They have waste streams from photo labs that are on board. In fact, when Royal Caribbean’s conviction came down, we found out that in fact they were discharging silver nitrate overboard. I don’t even want to say discharging. It’s not really the right word. They were dumping silver nitrate overboard from the photo labs, which is very, very toxic to fish. They were dumping perchloroethylene, the solvent they use in their dry-cleaning facilities, which is very toxic. It’s a carcinogen. And on and on.

And they also, of course, were generating fantastic quantities of sewage. They advertise these cruises as being a nonstop buffet, right? Well, guess what happens to all that food? At some point the ship’s got to get rid of it after it’s passed through the people on the boat. And they generate tremendous amounts of sewage and urine from all of the feeding that goes on at the trough.

Jessica: Wow! So do they just directly dump it into the water or is there some sort of treatment that’s supposed to happen with this? I mean, what’s going on here?

Gershon: Well, the sewage discharges, what’s known as the blackwater discharges, the human waste discharges, were at that time being so-called treated through a device known as a marine sanitation device. It turns out that marine sanitation devices had actually never been checked out by the Coast Guard to see if they worked, certainly not at that level of volume of material passing through them. So even they’d been on the market for many, many years, and been required for many, many years, they had never been field tested to see what they were turning out. And as it turns out when we started doing some testing in Alaska, we found out that they were not only not treating the waste, they were actually functioning as incubators for the bacteria in the waste. The samples of the waste were so hot with bacteria that they were pegging the test. So we don’t even know how many bacteria per milliliter were actually present because they literally pegged the test at the maximum reading that the test would allow.

I said, “What do you mean they don’t have permits? How could you be discharging millions of gallons of wastewater and not have a permit?” And he says, “Well, it looks like they’re exempt." I was like, “No kidding. I wonder how they worked that?"

So the blackwater is supposed to be getting treated. The graywater, everybody was just discharging because they were telling us it was innocuous. And of course it wasn’t. And they were spiking the graywater with other things, like the discharge from the machine shops and the spas and the pools and the medical facilities. Everything like that was going in the graywater.

The other problem was that not only was there no permit to discharge, but there was no one watching what they were doing. And so they were installing piping on the ships. When they would leave the port, if they didn’t think the Coast Guard was going to be around for their once a year, one hour walk-through on the ship, they would get out to sea and they would install pipes on the ship that would allow them to just bypass all of the pollution control equipment.

So another waste stream that I didn’t even mention before was the oil from the bilge water. When you’re running an engine like that, you just get oil mixed in with water and it gets into a holding container underneath the engine and it has to be cleaned and released. And they’re supposed to put it through this thing called an oil bilge water separator to pull the oil out. Well, they didn’t want to do that because that would, of course, require them to buy new filters every once in a while and the filters cost some money. And so, these guys were getting bonuses, the engineers were getting bonuses for coming in under budget. And so, one way to come in under budget was to not treat any waste. So they would put on what were called “magic pipes” and they would just discharge straight overboard.

Jessica: Wow. That’s amazing.

"We’re talking huge quantities of waste going into, in many places, some of the most pristine habitats in the world."

Gershon: Yeah. And they got busted a whole bunch of times. As it turns out the more we looked into it, we found that in fact this wasn’t one ship, it was virtually all of Royal Caribbean’s fleet. And then we found out Carnival had been doing the same thing with all of their ships and it was in fact a fleet-wide practice to not treat waste on the vessels. So it was a real problem. And we’re talking huge quantities of waste going into, in many places, some of the most pristine habitats in the world. I mean, where do these guys go, right? I was going to say they don’t cruise to New Jersey, but in fact nowadays they do. But a lot of these ships are going to the Caribbean and they’re coming to Alaska and they’re going over coral reefs and they’re going into really critical habitat for marine life. And, of all the places in the world, we’re not talking Boston Harbor here or the Port of Long Beach. We’re talking about some very pristine areas and that’s where they were dumping their waste.

Jessica: Huh. Interesting. In addition to tourism, Alaska also has a very big fishing industry, which I’m sure this was having an effect on.

Gershon: The fishermen were quite concerned. I mean, here we were marketing our salmon as the greatest wild, organic salmon in the world, which it is. And, at the same time the fishermen were quite nervous about the fact that Chile or Norway or someone else was doing farm fishing for salmon, which is certainly an inferior fish in many, many ways, but at least they could say, “Well, we weren’t raising our fish in waters that had cruise ship waste in it.”

So the fishing community was very concerned. And, in part, to a large degree because of that all of the politicians in Alaska were very concerned and so we initially started to have some progress. But then once the industry really got geared up for fighting us, they started with those campaign contributions, they just started to get really slick about it, and it became a very entrenched war for quite a few years.

Jessica: Interesting. And so part of that war was the ballot initiative that you co-authored. That was in 2006, correct?

Gershon: That’s correct. Well, that’s when it came onto the ballot was in 2006. The state of Alaska voted on the initiative and it passed despite a two million dollar propaganda campaign by the industry. We won anyway. And Alaska now has the strictest cruise ship rules in the world.

We won by about six percent and if they had not spent the $2 million they spent, (we spent about $8,000 on our side), I think it probably would have been about 80 or 90 percent. You know, Alaska has that rap of being very pro industry and not being green and it’s true to a great degree. However, Alaska also really prides itself on its independence and on a sense of fair play. And so one of the things that we did in the campaign very consciously was we made it clear to people that everyone else, I don’t care if you were in mining, or oil, or timber, whatever type of extraction or natural resource work you were doing, you had to have a permit to discharge, you were going to be monitored, you had to turn in reports, there was going to be testing of your effluent, and this is the way everybody else had to behave and perform in Alaska. Everyone except the cruise industry. And it really resonated with people that that wasn’t fair. And I think that that was a large reason that we won the election.

"The fishermen were quite concerned. I mean, here we were marketing our salmon as the greatest wild, organic salmon in the world."

I should say also that it was not just about pollution rules. The initiative also covered the establishment of several taxes on the industry so that the industry would be paying for infrastructure impacts that they were having on Alaska ports of call. And up until that point, these impacts were being paid for by the towns themselves. It be would kind of like you wanting to go somewhere and have a factory someplace and asking the town to build your factory and maintain your factory so that you could go into the factory and make widgets and make a lot of money selling widgets somewhere else. People realized that that wasn’t right either and they really should be paying to support the infrastructure that they were impacting. So when you added those two things together, we overcame a tremendous financial deficit. They spent about $2 million and we spent about $8,000 and we won the election.

Jessica: Wow, that’s really amazing. So the ballot was passed, but then, of course, it went to the Alaska legislature. What happened there?

Gershon: Well the constitution of Alaska prevents the legislature from making major modifications in a law passed by initiative for two years. So you have about a two-year grace period where they are allowed to tweak it a little bit but they can’t really don’t anything substantial. Of course, they tried. It wasn’t like bills were not put in, but they all died. We made it very clear that we would challenge those and that we would be successful. And frankly the legislature also saw that we won the election and so they’re kind of looking at it like, maybe these guys have more political clout than we thought. So nothing strange really happened the first couple of years.

In the third year after the initiative, 2009, the legislature did pass a modification to the law and they extended the time period that the cruise industry would have to meet the standards at the point of discharge. And this was a very important part of the initiative. We not only wanted them to meet the state’s water quality standards, we wanted them to do them without a mixing zone. If your listeners are not familiar with mixing zones, mixing zones basically are a volume of public water at the discharge point where a discharger is not required to meet the rules. And it’s a way to circumvent the Clean Water Act, which says you’re supposed to meet the standards for your discharge.

So we made it clear in the initiative and in the law that they were going to have to meet their water quality standards at the point of discharge. And it was the first time in the country that an industry was going to have to do that. Virtually every other industry in the country that has asked for mixing zones has gotten them since the law was passed in 1972.

So in 2009, the legislature extended the time for them to have to meet the water quality standards at the point of discharge until January 1, 2016. I mean, it’s amazing. They were giving them a total of nine years. However, we managed to get the legislature to include in that amendment the idea that they would have to, in the interim, meet the best available technology that was there. In other words, if there was a ship out there doing a better job than another ship, the inferior ship didn’t have to necessarily use the same system, but they had to meet that level of performance. So even though the date for full compliance had been extended, in the interim they were still going to have to do as good as the best ships in the fleet. And some of ships have changed their equipment and were actually doing a pretty good job.

So because of that language, I was willing to let that law go through without a legal challenge. And, unfortunately, the first time the law was to be applied would be in the 2010 permit issued by the Department of Environmental Conservation (DEC) here at the state level and DEC just wrote a permit that was illegal. They decided to define “best available technology” (BAT) as the best system that any ship has on it at that time. So whatever you were doing, that would be your best available technology. And of course, that’s ludicrous. It makes a mockery out of the whole concept of using BAT, best available technology.

So I tried to file for a hearing on the permit so that I could make these claims publicly and DEC denied me the hearing, which was interesting. They said that I did not have standing to bring the challenge and that was interesting. My gosh, you would think that if anybody had standing on this issue after all these years it would’ve been my organization. And Friends of the Earth decided to join us in this pursuit and so between the two of us they said that we do not have standing to bring this issue.

"Not only was there no permit to discharge, but there was no one watching what they were doing."

The second thing they said was that we were not raising issues of law and so we failed to get a hearing on that point as well. Well, we felt that both of these answers were ridiculous and so we contacted Earthjustice. Earthjustice agreed to take the case for us and we filed our briefs last January and were victorious in the case about a week and a half ago.

Jessica: Huh, interesting. So basically the court ruled that Alaska’s state regulators need to take another look at these treatment systems on cruise ships, correct?

Gershon: What they told them to do was basically exactly what we were telling them that we wanted them to do. The court said, you need to prove to the public that what you’re considering to be the BAT for these ships is in fact the BAT. Can these ships do better? Is it technologically possible? Is it economically possible? And you need to demonstrate that to the public. That is a question of law and they have a legitimate claim to ask that question and you need to address that question.

The other issue that had been raised earlier was that the state said that we had failed to show that it was economically feasible for the ships to do better. And of course anyone who knows anything about the [Clean Water] Act and about water quality standards knows it’s not the public’s responsibility to make that determination. It’s the state’s responsibility to determine whether or not it is feasible. And if they really believe it’s not feasible then they need to make that case. And the state had made no economic analysis whatsoever, let alone presented any information to support that position. They actually just tried to say it was our fault for not submitting that.

I mean if you can imagine, how would I ever get the information to make that determination? Am I going to call a cruise line and I’m going to say, “Gee, would you mind telling me how much it would cost for you to do this, and what would you spend and what kind of equipment would you use?” These are questions that they would never entertain from me for a moment. If the state calls and asks them, they’re supposed to answer. So again, it was just a very bizarre position for the state to try to assert that it was our responsibility to do the economic feasibility analysis, but that’s the position they took.

So now the state’s going to have to go back and justify the permit limits that they set because they gave an individual permit to each ship. And they’re going to have to go back now and justify the fact that they really are requiring the best available technologies to be used on those ships. And frankly, they can’t do it.

What we’re doing is we’re saying, look, you’ve got this one type of system out there that works on this principle of reverse osmosis (RO), which means you’re basically using some energy to push pollutants back against a gradient through a filter under pressure. And it does a pretty good job. And the ships that were using the RO systems, the reverse osmosis systems, were the best ships in the fleet. And there were four of them. And we’re not saying other ships have to use those RO systems, but they have to achieve that level of performance. And that’s what the state’s now going to have to justify. Should we have given anyone a permit for any less performance than what’s being done on the ships with the RO systems?

Jessica: This may be a silly question, but is it possible that the Department of Environmental Conservation (DEC) just didn’t know that there were better treatment systems out there? I mean, what is their justification for not knowing this stuff?

Can you imagine if you were a bank robber and you went to the local Wells Fargo branch and said, 'Hi, I’d like to apply for a job as a teller?' That’s essentially what’s going on here.

Gershon: No. In fact, one of the most powerful points of our case was that it was their data that we used to demonstrate that these better systems exist. They’ve been doing sampling since 2001 and doing RO sampling since probably 2003 or 2004, so there’s at least five or six years of samples from these ships with these systems that were right there in the fact sheet that DEC turned out with the permit. It was right there in the fact sheet. This ship has this type of system and it’s getting these results. So, they could not for one moment argue that they were not aware that these better systems existed. And the fact that there are the ships shows that they are economically feasible to use. I mean, their existence proves that they are technology possible and economically feasible. So their whole argument just has no legs.

Jessica: So let’s say that they do follow the law, which obviously we hope that they do. Alaskan cruises account for some eighty percent [Editor’s note: the correct percentage is eight percent.] of the global cruise industry, so this would have a major impact on this water pollution issue.

Gershon: Well one of the things that we were really hoping to accomplish in passing the initiative was that we were hoping that other states would jump on board and go, oh my gosh if this is what they’re having to do in Alaska and they’re still doing great up there and making lots of money, well we should have them do it here. Unfortunately, we found that their lobbyists were so powerful in these other states that we had not been able to get that to happen yet.

Maine has passed a law that’s weaker than our law, but I guess it’s better than nothing. Hawaii passed a law that, again, is not as good as our law but is better than nothing. But in those places they are under no obligation whatsoever. They self-monitor. I mean, here are these convicted felons self-monitoring their discharges. Can you imagine if you were a bank robber and you went to the local Wells Fargo branch and said, “Hi, I’d like to apply for a job as a teller?” That’s essentially what’s going on here. I mean, these guys are convicted felons for dumping pollutants on multiple occasions, knowingly dumping.

And we’ve have a federal bill that has not been reintroduced yet this year, but we’ve had a bill that has been introduced the last couple of sessions of Congress and that federal bill would establish uniform rules for the country for all U.S. waters. That would really be the best scenario because then it wouldn’t be pitting state against state. We’d have the cruisers following the same rules everywhere they go in U.S. waters.

Jessica: Definitely, which probably also makes it easier for industry to not have to account for state by state rules.

"Most of these [new] ships are not coming out with better equipment out of the factory."

Gershon: It does. It does. It’s funny because they always say that. You know, we don’t care what the rules are. Just tell us what they are and make them consistent so we don’t have to worry about them again. It sounds great when they say that, but they actually really don’t want to do that. They’d actually really rather not have any rules. And as long as they think they can get away with not having any rules, that’s what they’re going to go for.

Jessica: Exactly. Well, you mentioned that some of the cruise ship lines are using better technology. Are you comfortable in saying what those companies are so that if people want to take the more eco-friendly cruise ship they know their options?

Gershon: No. And the reason is because it’s not consistent for any particular line. Some of the ships from some of the lines are better than others. Just the fact that they don’t put these systems on every ship in their own fleet and in fact the newest ships that are being built, they’re dwarfing the ships that have even been coming to Alaska over the last few years, most of these ships are not coming out with better equipment out of the factory. So, no. The only reason they’re doing it in Alaska is because they have to do it in Alaska. And the ships that aren’t coming to Alaska, right down the line have inferior systems on there and they know it.

Jessica: Definitely. Well that is good information to know. Thank you.